The Campaign Legal Center today submitted an amicus brief  in opposition to the latest attempt by outside groups to gut existing disclosure laws in a case brought by the Hispanic Leadership Fund (HLF) against the Federal Election Commission (FEC) in the U.S. District Court for the Eastern District of Virginia. The organization is seeking to air television advertisements criticizing President Obama without complying with “electioneering communication” disclosure requirements, which include donor disclosure.

“Electioneering communication” disclosure requirements apply to broadcast ads that refer to a clearly identified candidate in close proximity to an election. The law defines “clearly identified” to include not only ads that explicitly name a candidate, but also ads that make the identity of the candidate “apparent by unambiguous reference.”

The ads proposed by HLF would not mention President Obama by name and instead would use the terms “the White House” and “the Administration” and even audio recordings of the President’s voice. In an attempt to evade the electioneering communication disclosure requirements, HLF argues that its ads do not refer to a clearly identified candidate.

“The proposed ads are unsubtle and unambiguous attack ads against a clearly identified candidate. Federal law requires the funders of such advertisements to be revealed to the public,” said Paul S. Ryan, Campaign Legal Center Senior Counsel. “For decades the Supreme Court has repeatedly upheld disclosure laws as serving the vital public interests in enabling voters to make informed decisions on Election Day and preventing corruption of elected officials. The court should reject HLF’s efforts to deny voters this critical information regarding the special interests trying to sway their votes.”

HLF v. FEC was originally filed in federal court in Des Moines, Iowa, but the court dismissed it as an improper venue.

The challenge is based on an advisory opinion request (AOR) filed with the FEC in June by American Future Fund (AFF), asking whether it could run similar ads to those proposed by HLF. The FEC, as it has regularly under the current lineup of commissioners, deadlocked on whether such advertisements constitutedelectioneering communications requiring donor disclosure reports. The Legal Center, joined by Democracy 21, filed comments arguing that the ads clearly constituted “electioneering communications” subject to disclosure laws requiring the group to reveal its funders.  

To read the brief filed today by the Campaign Legal Center, click here. 

To read the comments filed by the Legal Center and Democracy 21, click here.

Today, the Campaign Legal Center, joined by Democracy 21, submitted a brief opposing an effort in Wagner v. FEC to overturn the ban on political contributions by federal contractors to federal candidates, parties and other political committees. The 70-year-old restriction on campaign contributions from persons and entities contracting with the federal government was enacted in 1940 to address corruption in federal contracting in the wake of scandals—most notably the “Democratic campaign book” scandal.

“Plaintiffs ignore the threat of pay-to-play corruption that would soar in the absence of this commonsense restriction, as well as the scandals on the state level that have prompted legislatures across the country to enact similar contractor contribution bans,” said Tara Malloy, Campaign Legal Center Senior Counsel. “Plaintiffs inappropriately ask the court to take on a legislative role and tinker with the law, suggesting changes that wouldn’t even remedy what plaintiffs view as problems. The court was right to reject plaintiffs’ request for a preliminary injunction and should rule against them again in this instance.”

Wagner v. FEC is pending in the U.S. District Court for the District of Columbia, which rejected plaintiffs’ request for a preliminary injunction in April.

To read the brief submitted today by the Campaign Legal Center and Democracy 21, click here.

On August 22, 2012, the Campaign Legal Center submitted an amended complaint to a federal court in Florida to address recent developments in the Secretary of State’s (“SOS”) ongoing efforts to remove thousands of registered voters from the state’s voter rolls before the general election in November, 2012. The Legal Center’s attorneys are part of the legal team representing a wide array of groups and individuals who have brought this legal challenge. The case isArcia v. Detzner, No. 12-22282 (S.D. Fl.)

This case was originally brought in June 2012 to challenge a program initiated by the Florida Secretary of State (SOS) to identify non-citizens who are currently on Florida’s voter rolls. The suit alleged that the Secretary’s actions violated the National Voter Registration Act (NVRA), along with Section 2 of the Voting Rights Act.   The Florida Secretary of State abandoned the program due to numerous errors and flaws in the list of voters identified by the Secretary of State. However, some Florida County Supervisors of Elections did utilize the flawed list produced by the Florida SOS and notified voters that they had been identified as non-citizens. Many persons on the list were citizens however, and the Florida SOS never took any steps to reinstate or reassure the legally registered voters who had been mistakenly identified as non-citizens. Instead, the SOS has sought access to the Department of Homeland Security’s (DHS) Systematic Alien Verification for Entitlements Database (SAVE) to cross-check his list of potential non-citizens and to continue and complete his planned systematic purge. Because the planned purge will violate both the NVRA and Section 2 of the Voting Rights Act, Plaintiffs filed a motion to file their amended complaint.

To read the amended complaint, click here.

The Campaign Legal Center and Democracy 21 sent a letter today to the Honorable Douglas H. Shulman, Commissioner of the Internal Revenue Service, and to Lois Lerner, Director of the Exempt Organizations Division.

The letter states:

Enclosed is a report published by ProPublica on August 19, 2012, entitled, "How Nonprofits Spend Millions on Elections and Call it Public Welfare."  According to the report:

An investigation by ProPublica, drawing on documents filed with the Internal Revenue Service and the Federal Election Commission, offers the most detailed picture to date of how 501(c)(4) groups have used their tax status for purposes likely never intended.

Our examination shows that dozens of these groups do little or nothing to justify the subsidies they receive from taxpayers.  Instead, they are pouring much of their resources, directly or indirectly, into political races at the local, state and federal level.

We believe the report further documents the case we have made in a series of letters to the IRS that certain groups are improperly claiming Section 501(c)(4) status and that new regulations are needed to properly define the eligibility requirements for Section 501(c)(4) status.

To read the full letter, click here.

To read the full Pro Publica Report, click here. 

Today, in U.S. v Danielczyk, the U.S. Court of Appeals for the Fourth Circuit denied a motion to rehear the case.  In late June, the Fourth Circuit had reversed a district court decision that had ignored U.S. Supreme Court precedent in order to strike down the century-old federal ban on corporate contributions to candidates and political parties.  The Campaign Legal Center and Democracy 21 filed an amici brief in the Fourth Circuit urging the result reached by the Fourth Circuit.

The corporate contribution ban dates to the 1907 Tillman Act, which was signed into law by President Teddy Roosevelt in an era rife with political corruption and campaign finance scandals.  The restriction on corporate political contributions has been repeatedly upheld by the United States Supreme Court since its passage, most recently in FEC v Beaumont in 2003.

In May 2011 Judge Cacheris of the U.S. District Court of the Eastern District of Virginia issued a decision striking down the law, but he had failed to consider or even cite the Beaumont case.  The oversight led to widespread criticism and Judge Cacheris ordered a rebriefing of the case, but ultimately chose to disregard the Beaumont precedent in reaffirming his earlier decision.

“The Fourth Circuit corrected Judge Cacheris’ gross judicial overreach in the lower court and was correct in standing by its initial decision,” said Campaign Legal Center Senior Counsel Tara Malloy.  “The constitutionality of the ban on direct corporate contributions has been repeatedly upheld by the Supreme Court and the lower courts, and Judge Cacheris chose to simply ignore precedent.  The attempt to overturn the corporate contribution ban was an invitation to a return to the blatant political corruption and rampant scandals of the Gilded Age.”

The case, U.S. v. Danielczyk, was a criminal matter that involved numerous allegations of campaign finance violations, including that the defendants illegally directed corporate contributions to the 2008 presidential campaign of Hillary Clinton.

To read the brief filed by the Campaign Legal Center and Democracy 21, click here.

Today, the Campaign Legal Center, joined by Democracy 21, filed an amici brief with the U.S. District Court for the District of Wyoming in the latest challenge to federal disclosure laws.  Free Speech v. FEC concerns a challenge to the “subpart (b)” definition of “expressly advocating” (11 C.F.R. § 100.22(b)), as well as the Federal Election Commission’s (FEC) methodology for determining when a group has campaign activity as its “major purpose,” an important step in the larger determination of political committee status.

The subpart (b) definition of express advocacy is crucial because it captures sham issue ads that do not say “vote for” or “vote against” a candidate, but “could only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or more clearly identified candidate(s).”

“The Supreme Court has repeatedly upheld disclosure provisions by overwhelming margins.  This lawsuit ignores that precedent, and specifically theWisconsin Right to Life decision, in which the Supreme Court defined the ‘functional equivalent of express advocacy’ using a definition nearly identical to the regulation being challenged here,” said Tara Malloy, Campaign Legal Center Senior Counsel.  “There is a compelling public interest in revealing the groups or individuals seeking to buy influence with candidates and officeholders, as the Supreme Court has long recognized.  Plaintiff’s case is long on rhetoric but very short on legal substance as its attorneys are forced to dance around Supreme Court precedent directly contradicting their position.”

In March of this year, Free Speech submitted an advisory opinion request to the FEC proposing to run a series of attack ads and seeking to avoid registering as a political committee in order to hide the identities of its contributors.  The Campaign Legal Center, together with Democracy 21, filed comments with the FEC at the time urging the Commission to advise the organization “Free Speech” that many of its ads were “express advocacy,” and as a result, it would likely be required to register and report as a political committee.

This case is just one of a series of lawsuits challenging state, local and federal disclosure laws as part of a nationwide litigation campaign seeking to undermine transparency in politics.

The Legal Center and Democracy 21 were aided in this litigation by Larry B. Jones of Simpson, Kepler & Edwards, LLC, the Cody, Wyoming Division of Burg Simpson Eldredge Hersh & Jardine, P.C.

To read the brief filed by the Campaign Legal Center and Democracy 21, click here.

To read the comments filed with the FEC in March, click here.

Today, the Campaign Legal Center joined Democracy 21 in urging the Internal Revenue Service (IRS) to stand fast in the face of partisan political pressure from a number of Republican Senators who are warning the agency not to enforce tax laws against 501(c)(4) organizations that are secretly pouring tens of millions of dollars into candidate attack ads nationwide.

In a letter to IRS Commissioner Douglas H. Shulman and Director of Exempt Organizations Lois Lerner, the Legal Center and Democracy 21emphasized that the agency should “investigate and take appropriate enforcement action against” the groups currently abusing the tax code for partisan politicking and to set down clear guidelines for eligibility for the privileged tax status as a “social welfare” organization.

The Republican Senators’ letter appears to have been sent in response to last month’s IRS correspondence to the Legal Center and Democracy 21 announcing that the IRS “will consider proposed changes” in eligibility regulations for section 501(c)(4) tax-exempt groups.  The tax status has been widely misused by organizations that have spent tens of millions of dollars on political advertising in battleground states largely attacking candidates for federal office.

“This is a blatant effort to intimidate and bully the IRS into not doing its job of enforcing our tax laws in the face of rampant abuse by shadow political committees, dodging taxes and hiding their deep-pocket funders behind 501(c)(4) tax status,” said J. Gerald Hebert, Executive Director of the Campaign Legal Center.  “We encourage the IRS to ignore this partisan political pressure and press on with enforcing the laws on the books and issuing clear guidelines regarding eligibility for 501(c)(4) tax status to stop the abuse of a privileged tax-exempt status.”

In July 2011, the Campaign Legal Center and Democracy 21 initially filed a rulemaking petition and have subsequently written to the IRS on multiple occasions to challenge the eligibility for 501(c)(4) tax status of a number of Republican and Democratic affiliated groups, including Crossroads GPS, Priorities USA, American Action Network and Americans Elect.

To read the full letter sent today to the IRS, click here.

Today, the Campaign Legal Center, joined by Democracy 21, filed comments urging the Federal Election Commission (FEC) to reject an attempt by National Defense Committee (NDC) to avoid registering as a political committee and revealing its donors if it runs a series of advertisements expressly advocating the election or defeat of federal candidates.  The 501(c)(4) organization submitted an advisory opinion request (AOR 2012-27) proposing a series of advertisement scripts that clearly meet the definition of “express advocacy” and then asked the Commission whether it intends to enforce the regulation defining “express advocacy” (11 C.F.R. § 100.22(b)), implying that it is no longer valid but offering no credible legal argument to back up the claim.

“The legal argument offered by NDC is based on outdated court decisions.  NDC ignores recent decisions related to the law and neglects altogether to mention the Supreme Court’s decision in Wisconsin Right to Life, in which the court defined the ‘functional equivalent of express advocacy’ using a definition nearly identical to the regulation NDC argues the FEC should not enforce,” said Paul S. Ryan, Campaign Legal Center Senior Counsel.  “This is just the latest in a recent rash of filings with the FEC and in the courts attempting to undermine the modest disclosure provisions still in effect.  Clearly this effort reveals that there are some people and organizations out there looking to spend a lot of money to pick winners and losers in our elections without revealing their identities to American voters.”

The regulation (11 C.F.R. § 100.22(b)) being questioned by NDC deals with sham issue ads that do not say “vote for” or “vote against” a candidate, but “could only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or more clearly identified candidate(s).”

NDC also proposed a series of donation communications in its AOR, asking whether they would constitute solicitations of contributions under federal campaign finance law.  Finally, NDC asked the FEC whether it would be required to register as a political committee, but provided the Commission with insufficient information to make a determination as to the group’s political committee status.

The filing today by the Campaign Legal Center and Democracy 21 urged the Commission to advise NDC that it will continue to enforce section 100.22(b), that a number of the proposed ads do in fact constitute express advocacy, that several of its proposed donation requests constitute solicitations of contributions, and that NDC has failed to provide the Commission with sufficient information to determine whether NDC will need to register as a political committee.

To read the comments filed today by the Campaign Legal Center and Democracy 21, click here.

The latest attempt by American Future Fund (AFF) to evade existing campaign finance laws was challenged today by watchdog groups in a filing with the Federal Election Commission (FEC).  The Campaign Legal Center, joined by Democracy 21, filed comments urging the FEC to reject an attempt by AFF to utilize candidates and their committees to solicit “soft money” contributions through joint fundraising efforts with the 501(c)(4), super PACs and related entities.

In Advisory Opinion Request 2012-19, AFF asks the agency whether it may engage in joint fundraising efforts in various combinations with a list of political entities including the authorized campaign committees of federal candidates in direct violation of the federal law.

“An opinion permitting candidate-authorized joint fundraising committees to solicit and receive unlimited contributions would effectively gut candidate contribution limits,” said Legal Center Senior Counsel Paul S. Ryan.  “Candidate-authorized joint fundraising committees such as the Obama Victory Fund 2012 and Romney Victory Inc. would be able to add super PACs like Priorities USA Action and 501(c)(4) groups like Crossroads GPS to their rosters and solicit $1 million, $10 million or larger contributions from corporations, unions and other special interests—every penny of which could be spent advocating the election or defeat of President Obama and Mitt Romney.”

The comments filed today emphasize that such contributions to candidate-authorized joint fundraising committees, “would pose precisely the threat of real and apparent corruption that FECA’s contribution limits and BCRA’s soft money prohibitions were enacted to prevent.”

This current advisory opinion request by AFF is yet another effort by the group to evade federal campaign finance laws.  In June, in response to another AOR filed by AFF, the FEC deadlocked on 5 of 8 advertisements the group proposed to run without filing electioneering communications reports and disclosing donors.  The Legal Center, joined by Democracy 21, had filed comments arguing the ads using recordings of President Obama’s voice and the phrases “the White House” and “the Administration,” referred to a “clearly identified candidate” and therefore constituted “electioneering communication” subject to disclosure laws requiring the group to reveal its funders.

To read the comments filed today, click here.